Second Circuit Strikes Down Defense of Marriage Act

On Thursday, a three-judge panel of the U.S. Court of Appeals for the Second Circuit was the latest to issue a ruling on the constitutionality of the Defense of Marriage Act (DOMA). Over a strong dissent by one of the judges, it ruled that section 3 violates equal protection and thus is unconstitutional.

Section 3 defines “marriage” for the purpose of federal law as a “legal union between one man and one woman” and “spouse” as referring “only to a person of the opposite sex who is a husband or a wife.” The challenge in Windsor v. United Stateswas brought by a surviving spouse of a same-sex couple, married in Canada and residing in New York, who was denied the benefit of a spousal deduction under federal tax law.

This case is one of about half a dozen challenges in which the federal government originally defended the constitutionality of DOMA, which was passed by large majorities in both houses and signed into law by President Clinton in 1996. Following an announcement by Attorney General Eric Holder in 2011 that the Administration would no longer defend DOMA, the Bipartisan Legal Advisory Group of the U.S. House of Representatives hired special counsel to defend the statute in court.

Two aspects of these challenges bear mentioning. First, there is fundamental disagreement among the courts about whether DOMA is subject to rational basis review or intermediate scrutiny. Second, nothing in DOMA prevents states from defining marriage as they see fit for purposes of state law. Ironically, champions of same-sex marriage argue that striking down DOMA is a matter of federalism. As Ed Whelan from the Ethics and Public Policy Center pointed out:

Properly understood, federalism leaves state matters to the states and national matters to the national government. The only genuine interest of federalism at stake…is the ability of Congress to determine what marriage is for purposes of federal law.

The principal issue courts are grappling with is whether the classification in DOMA (here, defining marriage for the purpose of federal law as a “legal union between one man and one woman”) is subject to a rational basis standard of review, intermediate scrutiny or strict scrutiny (although no court has held that classifications based on gender preference are subject to the latter), and whether the proffered justifications for DOMA pass muster under those standards.

There are three levels of review for an equal protection challenge of this kind: (1) strict scrutiny, which is reserved for classifications based on race, religion or national origin, and which Justice Lewis Powell famously called “strict in theory, but fatal in fact” since nearly all laws subject to strict scrutiny have been struck down; (2) intermediate or heightened scrutiny, which has been applied to, among other things, classifications based on gender and illegitimacy; and (3) rational basis review, which has been applied to all other classifications such as age or income. When a court reviews a classification subject to strict scrutiny, the government must demonstrate a compelling need and that the provision is narrowly tailored to achieve that objective. When a court reviews a classification subject to intermediate scrutiny, the government must demonstrate that the classification is substantially related to an important government objective. When a court reviews a classification subject to a rational basis inquiry, the government need only demonstrate that the classification bears a rational relationship to an appropriate governmental interest.

In defending DOMA, the Bipartisan Legal Advisory Group asserts that the government interests at stake include, among others, preserving a uniform federal definition of marriage for purposes of obtaining federal benefits, protecting the federal fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution.” It also argues that Congress passed DOMA to encourage “responsible procreation.”

Some of these cases are currently pending before the Supreme Court, and others are making their way there quickly. The Supreme Court has not acted on any of these petitions yet, but given the fact that several courts have now struck down a federal statute on constitutional grounds, it is almost certain that the justices will hear one or more of these cases this term.

John G. Malcolm oversees The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law as director of the think tank’s Edwin Meese III Center for Legal and Judicial Studies. Read his research.

Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read her research.

Join The Discussion

This is what Liberals do.. In the famous words of Nancy Pelosi.. they "kick down the door".. But never take responsibility to the consequences of their actions.. "Pandora's box" has been opened and our "Tower of Babel" is being built.. God forgive us, as they know not what they have done..

As I understand DOMA, it is a law respecting marriage,which is a religious right. Doesn’t the Constitution prohibit congress from making any law respecting an establishment of religion? I believe that all laws pertaining to marriage, such as those that grant civil benefits for it (i.e., tax benefits) are in violation of the First Amendment.

Marriage is not onlya religous issue. Keep in mind that there are on the state and federal level programs, tax exmeptions etc that require a defininition of marriage in some capacity. If we let the seperate religions handle this affair there would be complete government chaos since most if not all mainstream religions in the US still docternely reject same-sex marriage.
Further the US Congress is not establishing a single religion over others by saying, for federal purposes mind you, that marriage is between one man and one woman. Keep in mind most faiths from Islam, to Catholics to Anglicans still say marriage is between one man and one woman.
The estbalishment clause is thus not broken and further marriage is not a civil liberty issue since not everyone is allowed to marry.

The federal government is establishing a view point by taking time and consideration that is counter to the definition of Marriage. Marriage has a meaning. Everyone is allowed to marry under that meaning. Some people want to change the meaning to reflect their sexual preference. Sexual gratification isn't apart of marriage that people want to change to say it is. The government offered benefits to married couples under it's proper definition. Get rid of the benefits (government) and see how many gays really want to marry that couldn't call it "marriage" in a forest from the very beginning. When you say "not everyone" are you implying more than humans?

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